Umanzor v. Lambert

• Decision Date: 18 February 1986
• Docket Number: No. 84-3393,84-3393
• Citation: 782 F.2d 1299
• Parties: Carlos Amilcar Umanzor UMANZOR, Petitioner-Appellant, v. David H. LAMBERT, District Director, U.S. Immigration and Naturalization Service, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1299

782 F.2d 1299

Carlos Amilcar Umanzor UMANZOR, Petitioner-Appellant, v. David H. LAMBERT, District Director, U.S. Immigration and Naturalization Service, Defendant-Appellee.

No. 84-3393.

United States Court of Appeals, Fifth Circuit.

Feb. 18, 1986.

Catherine Lampard, Timothy G. Keating, New Orleans, La., for petitioner-appellant.

John Volz, U.S. Atty., Louis Moore, Jr., W. Glenn Burns, P. Kevin Colomb, Eneid A. Francis, Asst. U.S. Attys., New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, BROWN and GEE, Circuit Judges.

GEE, Circuit Judge:

Carlos Umanzor, a citizen of El Salvador, was arrested and charged in March 1983 for having illegally entered the United States. He remained in the custody of the Immigration and Naturalization Service (INS) from that time until his ultimate deportation on October 14, 1983.

In June, ¹ before his deportation, Umanzor applied for political asylum. This request was denied, and Umanzor appealed to the Board of Immigration Appeals (BIA). On July 30, while the appeal was pending, Umanzor's attorney of record, Evangeline Abriel of Ecumenical Immigration Services (a New Orleans pro bono legal services organization), informed the INS that she would no longer be associated with Ecumenical and that a Catherine Lampard was replacing her. Umanzor, however, was not mentioned in this letter, and Abriel remained his counsel of record.

On October 5 the BIA affirmed the denial of political asylum and mailed, the same day, a copy of the decision to counsel of record, Abriel. She received the decision on October 10 at her office at Loyola University and forwarded it to Lampard of Ecumenical Immigration Services. Lampard received the decision on October 12. In the noon hour the next day, the 13th, the INS telephoned Abriel and informed her that Umanzor was scheduled to be deported that afternoon at 2:00 p.m. on a commercial airline flight leaving the New Orleans International Airport (Moisant Field) for Central America. Abriel immediately telephoned Lampard with this information.

Lampard arrived at the INS office at 1:30 p.m., enrolled as counsel of record, and was told that Umanzor's departure had been delayed until 5:30 a.m. the next morning. Lampard contends she verbally petitioned the District Director to stay the deportation so that she could seek judicial review. The INS denies that she made such a request. The district court did not resolve this dispute.

The next morning, on October 14, Umanzor's flight was again delayed, becoming airborne at 10:23 a.m. Lampard filed a petition for a writ of habeas corpus in the district court at 10:27 a.m., a time when Umanzor was still in United States airspace.

The district court dismissed the petition, reasoning that by the time the habeas petition was filed Umanzor was beyond the custody of the INS and that consequently habeas jurisdiction failed to attach. In addition, the district court noted, 8 U.S.C. Sec. 1105a(c) bars judicial review of a deportation order once the alien has departed the United States. Umanzor, still outside of the United States so far as the record shows, appeals the district court's dismissal of his petition.

I. Mootness

A threshold question is whether this matter has been mooted by Umanzor's release by the airline (assuming that the airline did have custody of Umanzor for habeas purposes). To satisfy Article III of the Constitution, an actual case or controversy must exist at all stages of judicial review. ² Brown v. Liberty Loan Corporation of Duval, 539 F.2d 1355, 1358 (5th Cir.1976). If the subject of an appeal has become moot, the appellate court may not decide it. H.K. Porter Co., Inc. v. Metropolitan Dade County, 650 F.2d 778, 782 (5th Cir.1981).

Under Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 1559-60, 20 L.Ed.2d 554 (1968) and its progeny in this Circuit, a prisoner's release from custody does not moot his habeas petition where he could suffer adverse collateral consequences, that is, disabilities or burdens which may flow from his conviction that give him a substantial stake in the judgment of conviction, one which survives the satisfaction of the imposed sentence. Escobedo v. Estelle, 655 F.2d 613, 615 (5th Cir.1981). Indeed, the "mere possibility of adverse collateral consequences is sufficient to preclude a finding of mootness." Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968).

Umanzor may very well suffer collateral consequences from his deportation. 8 U.S.C. Sec. 1182(a)(17) provides that aliens who have been arrested and deported and who seek readmission within five years are ineligible for visas and shall be excluded from admission into the United States. 8 U.S.C. Sec. 1326 provides that any deported alien who later enters, attempts to enter, or is found in the United States shall be guilty of a felony, one punishable by a fine or imprisonment or both. ³ The very real possibility of collateral consequences, then, requires us to find that this appeal has not been mooted for purposes of Article III of the Constitution by the airline's release of Umanzor.

II. Was Umanzor "In Custody" So That Habeas Jurisdiction Attached?

8 U.S.C. Sec. 1105a(a)(9) provides that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." The district court held that because the INS had given custody of Umanzor to the airline minutes before the habeas petition was filed, habeas jurisdiction did not attach.

Although the Supreme Court has expanded the concept of custody for general habeas proceedings beyond situations in which the petitioner is in actual physical custody, Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 1809-10, 80 L.Ed.2d 311, 319-20 (1984), we have held that Congress intended "held in custody" as used in Sec. 1105a(a)(9) to require "actual, physical custody in a place of detention." United States ex rel Marcello v. District Director of I.N.S., 634 F.2d 964, 969 (5th Cir.1981).

Nevertheless, the Supreme Court has recognized that a habeas petitioner can be in custody of the entity or individual against whom the writ is directed through that entity's or person's agent. In Braden v. Thirtieth Judicial Circuit Court of Kentucky, 410 U.S. 484, 489 n. 4, 93 S.Ct. 1123, 1126 n. 4, 35 L.Ed.2d 443 (1973), the Court concluded that an Alabama warden holding the petitioner pursuant to a Kentucky detainer was Kentucky's agent, and thus that the petitioner was "in custody" of the Kentucky respondent for purposes of a habeas petition filed in a Kentucky federal district.

The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody [citation omitted]. So long as the custodian can be reached by service of process, the court can issue a writ within its jurisdiction requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court's territorial jurisdiction. Id., 410 U.S. at 494-495, 93 S.Ct. at 1129-30.

We have little difficulty in concluding that Umanzor was under actual physical restraint by the government's agent--the airline--at the moment the habeas petition was filed. Umanzor was imprisoned inside of the aircraft, against his will, until the aircraft completed the flight and he was released. Since the district court had jurisdiction over the INS director against whom the writ issued, habeas jurisdiction attached. ⁴

III. Subject Matter Jurisdiction Under 8 U.S.C. Sec. 1105a(c)

Having concluded that this matter was not mooted by the airline's release of Umanzor and that habeas jurisdiction attached at the district court when the petition was filed, we must next inquire whether the district court's--and our--jurisdiction over this matter has been curtailed by Congress. 8 U.S.C. Sec. 1105a(c) provides, in pertinent part, that: "An order of deportation ... shall not be reviewed by any court if [the alien] has departed from the United States after the issuance of the order." The statute's command is unequivocal. See Asai v. Castillo, 593 F.2d 1222, 1223-24 (D.C.Cir.1978) (where alien petitioners departed the United States after having filed habeas petition challenging deportation orders, the appeals were dismissed pursuant to Sec. 1105a(c)).

Umanzor argues, however, that when the alien's departure was effected by the government, "departure" as used in Sec. 1105a(c) is limited to "legally executed departures." The authority for this proposition is Mendez v. I.N.S., 563 F.2d 956, 958 (9th Cir.1977), and Zepeda-Melendez v. I.N.S., 741 F.2d 285, 287 (9th Cir.1984). In both cases it was held that, since no notice of deportation was given to the alien's attorney, the alien was deprived of his right to counsel under 8 U.S.C. Sec. 1252(b) and the departures were effected illegally.

We entertain serious reservations regarding the "Mendez exception" for, if the exception is taken to its logical conclusion, any error or procedural defect at any point in the alien's deportation saga (from his arrest, hearing, BIA hearing, habeas proceeding in district court or appeal to the appropriate circuit court, to his final departure from the United States) would render the departure illegal. This being so, any later allegation of procedural error by a deported alien would force the district court and the circuit courts to review the entire matter, despite the express determination of Congress that no such reviews should take place. ⁵

We need not cross that Rubicon today, however, because even were we to adopt the Mendez exception, there is no evidence in this case that Umanzor's departure was effected illegally. Any alien subject to a final order of...